PROCEDURAL WIN AGAINST OUT-OF-STATE CIRCULATOR BANS IN NEW JERSEY AND PENNSYLVANIA

On April 19, the Third Circuit issued an opinion in Wilmoth v Guadagno, 17-1925, the New Jersey case over whether out-of-state circulators may collect signatures on primary petitions. The ruling makes it virtually certain that the New Jersey and Pennsylvania bans on out-of-state circulators will soon be ruled unconstitutional.

New Jersey bans out-of-state circulators for all types of petition. Pennsylvania allows out-of-state circulators for general election petitions, but not primary petitions. Both states are in the Third Circuit.

The decision says that such bans are unconstitutional unless the state can show they are needed for a compelling reason. It also says, "The complaint in this action presents a plausible claim that the New Jersey law infringes out-of-state circulators’ First Amendment rights."

So far, the only state interest that New Jersey has mentioned is that the ban is needed to preserve the freedom of association for political parties. However, neither the Democratic nor the Republican Party has intervened in the case.

The Wilmoth case arose in 2016, when Shawn Wilmoth wanted to circulate presidential primary petitions for Rocky De La Fuente, and co-plaintiff Trenton Pool wanted to circulate presidential primary petitions for Rand Paul. The U.S. District Court had upheld the law, and had not even bothered to write an opinion.

The Third Circuit decision was written by Judge Thomas Valaskie, an Obama appointee. It is also signed by Judge Thomas Hardiman, a Bush Jr. appointee, and Judge Patty Shwartz, an Obama appointee.

Almost All Bans on Out-of-State Circulators May Cease to Exist Soon

The New York ban is awaiting a decision in U.S. District Court in Merced v Spano, e.d., 1:16cv-3054. The case was argued March 29 and a decision could come out at any time. This is a Libertarian Party case.

The Montana lawsuit on out-of-state circulators for initiatives will be filed in a few days. Because Montana is in the Ninth Circuit, and the Ninth Circuit already invalidated Arizona’s ban on out-of-state circulators in 2008 in Nader v Brewer, it is likely that Montana will give in when the new case is filed. Earlier this year, when the Alaska ban was challenged, Alaska admitted it could not defend its ban, and conceded.

The Colorado ban on out-of-state circulators is being challenged by Congressman Doug Lamborn. His case is Goodall v Williams, 1:18cv-980, and was filed on April 25. He filed the case so that he can run for re-election in the June 26 Republican primary. He was removed from that ballot on April 23 by the Colorado Supreme Court, because his circulators did not live in Colorado when they circulated his petition.

The Colorado Supreme Court decision is Kuhn v Williams, 2018 CO 30. The Colorado Supreme Court said it was not deciding the constitutional issue. Colorado is in the Tenth Circuit, and the Tenth Circuit already invalidated out-of-state circulator bans in 2008, in an Oklahoma case, Yes on Term Limits v Savage, 550 F.3d 1024.

Assuming these cases win, the only states with bans will be for North Dakota initiative circulators, and all South Dakota circulators.

On April 26, the Oklahoma legislature passed SB 350. It makes it easier for a party to remain on the ballot. Current law requires a party to poll 2.5% of the vote for the office at the top of the ballot, every two years (the offices at the top of the ballot are President in presidential years, and Governor in midterm years). The bill changes that to any statewide race, and also says the vote test only needs to be met every four years, not every two years.

Assuming the Governor signs it, the bill takes effect in November. The only party on the ballot now, besides the Republican and Democratic Parties, is the Libertarian Party. Under the old law, the Libertarians needed to poll 2.5% for Governor this year, but under the bill, they can remain on the ballot no matter how few votes they poll in 2018. Also they will remain on for four more years if they get 2.5% for Auditor. It is far easier for a minor party to poll 2.5% for Auditor than for Governor, because most voters don’t really care who gets elected Auditor, so they are more willing to vote for a minor party candidate.

Other states that eased their retention test in the past 30 years are Alaska, Arizona, Arkansas, California, Colorado, Florida, Hawaii, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nebraska, Nevada, North Carolina, North Dakota, Ohio, Oregon, Rhode Island, South Dakota, Utah, Virginia, and Wyoming. All of these changes were the result of lobbying state legislators; none was caused by a court decision.

On April 17, the Maine Supreme Court rejected a challenge to the use of ranked choice voting in the June 12 primary. The Maine State Senate had sued the Secretary of State on March 29, arguing that Maine should not use ranked choice voting for the June 12 primary. Maine Senate v Secretary of State, 2018 ME 52.

The State Supreme Court rejected each argument of the State Senate. The State Senate had pointed out that the existing Maine statutes contain a contradiction: the law says primary winners only need a plurality, and yet it also says ranked choice voting should be used. The Maine Supreme Court said when statutes are contradictory, the later law controls, and the plurality language has been implicitly repealed by the new law authoring ranked choice voting.

The Senate said that the legislature never appropriated money to pay for ranked choice voting this year. The Supreme Court said if the Secretary of State is spending money on ranked choice voting, that is his decision, and the Court would not intervene in a fight between the executive branch and the legislative branch, because the Court must respect the separation of powers.

The Senate said that the law says votes must be counted in each town on election law, but that the Secretary of State (in order to make ranked choice voting work) is instead having the votes counted centrally. The Court said, again, respect for separation of powers means that the Court won’t interfere with the Secretary’s decision.

The Maine Senate has a Republican majority, but the House has a Democratic majority. Generally, now, Maine Democrats support ranked choice voting but Republicans don’t.

The June 1 B.A.N. will probably carry a picture of the Maine primary sample ballot.

As reported previously, on March 27, a U.S. District Court ordered Florida Governor Rick Scott and his administration to set out objective standards on how ex-felons can regain the ability to register to vote, and to do so by April 26. Hand v Scott, n.d., 4:17cv-128. Governor Scott appealed for a stay to the Eleventh Circuit. On April 25, the Eleventh Circuit granted the stay by a vote of 2-1. Judges William Pryor and Stanley Marcus voted for the stay; Judge Beverly Martin against.

On April 4, the Alaska Supreme Court ruled that the Democratic Party has a right to nominate a non-member. Alaska Democratic Party v State, S-16875.

As a result, the incumbent Governor, Bill Walker, who is a registered independent and who is running for re-election this year, will be allowed to run in the Democratic primary. Assuming he wins that primary, he will be listed on the November ballot as the Democratic nominee.

The Supreme Court vote was unanimous, except that one justice wrote that he hasn’t decided, and that he will decide later when the full opinion is released. The court issued its ruling without writing an explanation, because time was urgent.

Similar decisions have been won in Colorado by the Democratic Party, and in New Mexico by the Green Party. All these decisions are based on the U.S. Supreme Court dicta in the 1986 case Tashjian v Republican Party of Connecticut, which said that freedom of association means that political parties must be allowed to nominate non-members.

The Oregon Independent Party is about to file a similar lawsuit.

On April 10, U.S. District Court Judge Wiley Daniel, a Clinton appointee, issued an opinion in Nemanich v Williams, 1:17cv-1937. He said that Colorado’s Secretary of State did not violate the U.S. Constitution when he replaced a Democratic presidential elector who was unwilling to vote for Hillary Clinton, and instead who had tried to vote for John Kasich.

The case had been filed by three Colorado Democratic presidential electors who asserted their right to vote for any qualified candidate, although two of the three did vote for Clinton. The judge said none of the three has standing. Generally when courts find that the plaintiffs don’t have standing, they are supposed to abstain from ruling on the substance of the lawsuit. But Judge Daniel proceeded to rule that even if standing weren’t a problem, they have no right to vote for someone who didn’t win a plurality in that state in November. The plaintiffs are in the process of filing an appeal.

Similar cases are pending in California (in U.S. District Court) and Minnesota (in the Eighth Circuit).

On April 17, New Jersey Governor Phil Murphy signed AB 2014, which establishes automatic voter registration. Automatic voter registration means that every adult citizen known by the government to exist is registered automatically, unless the individual declines.

On April 5, Maryland Governor Larry Hogan let SB 1048 become law, although he wouldn’t sign it.

The other places that have it are Alaska, California, Colorado, District of Columbia, Georgia, Illinois, Oregon, Rhode Island, Vermont, Washington, and West Virginia.

South Carolina holds primaries for the Republican and Democratic Parties on June 12. South Carolina is the only state that lets parties put advisory questions on their statewide primary ballot. This year, the Republican ballot will ask voters, "Do you believe that voters should have the option to choose to affiliate with a political party when they register to vote or change their voter registration in South Carolina?"

Every twenty years, Florida sets up a Constitutional Revision Commission, which has the power to propose changes to the Florida Constitution. Those ideas go on the ballot, and this is the year the process is occurring.

The Commission decided not to ask the voters if they wish to change the Constitution, relative to who can vote in primaries. Florida has closed primaries, except that if, for a particular office, only members of one party file, then all voters can vote in that party’s primary, just for that one office. If a write-in candidate files, he or she is deemed to be not a member of that same party, so the primary for that office is closed. Opponents of closed primaries tried to get the Commission to put a proposal on the ballot saying the "write-in loophole" should be abolished, but the Commission didn’t do that.

On April 3, the voters of Wisconsin were asked if they wish to convert State Treasurer from a partisan elected position, to an appointed position. The voters voted 39%-61% against the idea.

As reported earlier, independent candidate Mark Moore won a lawsuit against the March 1 Arkansas deadline for independent candidate petitions a few months ago. But even though he has completed his petition, the state now says that it will not check his signatures because he didn’t file candidacy paperwork on March 1.

The state says that just because the deadline for the petition was struck down, that had no effect on the deadline for filing various candidacy forms. The plaintiff, Mark Moore, says that always before, the deadline for the petition and for the paperwork was simultaneous. He also points to some precedents that an early deadline for submitting paperwork is also unconstitutional.

On April 25, the Eighth Circuit sent the case back to the U.S. District Court to decide if Moore’s petition should be checked, or if his failure to file the paperwork in March defeats all his work.

Alabama: the legislature adjourned without passing HB 17. That bill would have abolished special U.S. Senate elections, except for special elections held in November of even-numbered years. The House did pass it but the Senate never took it up. The bill had been perceived as a reaction by the Republican legislative majority to the December 2017 special election that resulted in a Democrat becoming U.S. Senator.

California: on April 18, the Senate Judiciary Committee passed SB 1394, which makes it illegal for anyone to pay petition circulators except on an hourly basis. It even forbids bonuses for high producers. The bill now goes to the Appropriations Committee. Governor Jerry Brown has vetoed similar bills in the past.

Connecticut: on April 26, the House passed the National Popular Vote Plan bill, HB 5421. The vote was 77-73. Now the bill goes to the State Senate.

California: On March 29, Ninth Circuit Judge Stephen Reinhardt died. He was one of the three judges who heard Soltysik v Padilla in the Ninth Circuit on February 8, 2018. The decision hasn’t come out yet. On April 18 the Ninth Circuit chose Judge Johnnie B. Rawlinson, a Clinton appointee, to take his place. The case concerns the California law that won’t let a candidate list his or her party on the ballot unless the party is a qualified party. The plaintiff is a registered Socialist.

Illinois: on April 2, the U.S. Supreme Court refused to hear Tripp v Scholz, 17-1129, the Green Party’s challenge to the 5% petition for legislative candidates. No minor party legislative candidates appeared on the Illinois ballot in 2016. The U.S. Supreme Court hasn’t accepted a ballot access case filed by a minor party or an independent candidate since 1991.

Montana: on April 23, the U.S. Supreme Court refused to hear French v Jones, 17-1255. The issue was a state law that made it illegal for a judicial candidate to say that a political party had endorsed him or her. The lower courts had upheld the law.

Nebraska: on March 19, the State Supreme Court construed a law that does not permit candidates to run in a primary if they had "changed party affiliation" during the preceding year. The Court said that law doesn’t apply to someone who switches from being a party member to being an independent, or vice versa. Davis v Gale, S-18-218.

New York: on April 17, the Upstate Jobs Party filed a lawsuit against state campaign finance laws that let individuals give more money to a qualified party than an unqualified party. Upstate Jobs Party v Kosinski, n.d., 6:18cv-459.

"Independent" is a very attractive ballot label, and independent candidates generally value their ability to have that label next to their names. However, over the years, some states have banned that word for independent candidates

In states that won’t permit an independent candidate to use "independent", voters have formed parties named Independent Party to circumvent the problem, but that isn’t always allowed either.

The chart on page five shows that every state, at one time or another, has printed either "independent" or "Independent Party" on a ballot. The most recent instance in which that label appeared on a ballot is listed. When there is a tie, the chart lists the most important office on the ballot for that year. If there were several independents on the ballot for the most important office, the chart lists the candidate who received the most votes.

States that don’t permit independent candidates to use "independent" on the ballot are listed below:

Alaska: in 2009, the state Elections Division decided that it would no longer allow independent candidates to have "independent" on the ballot, because the Alaskan Independence Party was on the ballot. That party had been on the ballot starting in 1974, and had not asked that the label "independent" be blocked. There is no statutory authority for the state’s decision, except for a vague law that says the state should make the ballot as clear as possible.

California: in 2012 the legislature passed a bill saying independent candidates could no longer have "independent" on the ballot, unless they were independent presidential candidates. Instead they have "party preference: none." In 2016 the Secretary of State ruled that no party named "Independent Party" would be allowed either.

Connecticut: had let independent candidates choose "independent" until 2008, when the Independent Party pre-empted that word.

Delaware: the state had no procedures for independent candidates to run until 1978. The 1978 legislation said they are to be listed on the ballot with the label "Unaffiliated candidate." But Delaware permits the Independent Party to be on the ballot, so independent candidates who want the label "independent" generally obtain the nomination of the Independent Party.

Florida: in 1999 the legislature passed a bill saying independent candidates could no longer have "independent", and instead would have "no party affiliation." However, the state permits an Independent Party to exist, so independent candidates who want that label simply file to run in the Independent Party primary.

Hawaii: had no procedures for independent candidates until 1970. The 1970 law let independent presidential candidates use the label "independent"; but independent candidates for other office had to be on the ballot as "Nonpartisan." However, the state permits parties called "Independent Party" to get on the ballot.

Louisiana: has always let independent presidential candidates use the label "independent", but starting in 1976, independent candidates for other office have no ballot label. However, the state permits parties called "Independent Party" to get on the ballot.

Michigan: had no procedures for independent candidates until 1976, when a federal court ruled that the state had to permit independent candidates. The legislature refused to enact such procedures until 1988. During the period between 1976 and 1986, independent candidates who wanted to be on the ballot did so by going to court, and they were permitted to have the label "independent." However, the 1988 law which finally set up procedures for independents said they could only have the label "No party affiliation."

Nebraska: in 1897, the legislature passed a law saying that independent candidates could only have the label "By petition."

Nevada: had always let independent candidates use "independent" until 2015, when a bill passed saying they could only use "No political party."

New York: had always let independent candidates use "independent" until 1994, when the Independence Party became qualified. Ever since, no one can use "independent" because the state feels to do so would cause confusion with the Independence Party.

North Carolina: had always let independent candidates use "independent" until 1977, when the law was changed to require "Unaffiliated." However, the state lets groups to place a party on the ballot called "Independent Party."

Ohio: had always allowed "independent" until 1951, when the law was changed to provide that they could have no ballot label. This policy was held unconstitutional in 1988, so the state said they could use "no party candidate" if they wish.

Oregon: had always let independent candidates choose "independent" until 2005, when the law was changed to require "Nonaffiliated" instead. However the state permits a party to be called the Independent Party.

South Carolina: the state has always provided that independent candidates should have the label "Petition." However, the state lets parties use the name "Independent Party".

Utah: independent candidates could use "independent" until 2009, when the law was changed to require them to have "Unaffiliated."

The chart below shows the last time a state printed either "Independent" or "Independent Party" on a ballot. There is no state that has never printed such a label, but Nebraska hasn’t done so since 1896.

State	Year	Office	Candidate	% of Vote
Alabama	2016	President	Gary Johnson	2.11%
Alaska	2008	President	Ralph Nader	1.17%
Arizona	2016	State Senate 20	Doug Quelland	13.65%
Arkansas	2016	President	Jim Hedges	.42%
California	2010	U.S. House 37	Nicholas Dibs	8.41%
Colorado	2004	U.S. Senate	John R. Harris	.40%
Connecticut	2016	U.S. House 4	John Shaban	1.62%
Delaware	2016	State Representative 20	Donald R. Ayotte	1.46%
Florida	2012	State Representative 34	Nancy Argenziano	42.03%
Georgia	2016	State Representative 151	Kenneth Zachary, Jr.	37.87%
Hawaii	2014	Governor	Mufi Hannemann	11.72%
Idaho	2016	President	Evan McMullin	6.73%
Illinois	2016	State Representative 14	Arthur Noah Siegel	16.78%
Indiana	2016	State Representative 38	Jason Burns	25.29%
Iowa	2016	State Senate 14	Ruth Smith	31.01%
Kansas	2016	President	Jill Stein	1.98%
Kentucky	2016	President	Evan McMullin	1.18%
Louisiana	2008	President	Ralph Nader	.36%
Maine	2016	State Representative 94	Owen Casas	50.10%
Maryland	2014	State Representative 23A	Shukoor Ahmed	27.23%
Mass.	2016	U.S. House 1	Frederick O. Mayock	17.92%
Michigan	1984	Secretary of State	Brian Wright	.79%
Minnesota	2012	State Senate 64	Scott Larson	10.99%
Mississippi	2016	U.S. House 2	Troy Ray	2.41%
Missouri	2016	Governor	Lester Turilli	1.07%
Montana	2016	State House 10	James H. Swanson	26.98%
Nebraska	1896	U.S. House 4	William H. Dech	.28%
Nevada	2014	U.S. House 3	David Goossen	1.12%
N.Hamp.	2016	U.S. Senate	Aaron Day	2.40%
N.Jersey	2014	U.S. Senate	Jeff Boss	.24%
N. Mexico	2016	State Representative 54	Freddie Joe Nichols	24.41%
New York	1994	Assembly 46, spec. elec.	Michelle Heitzner	5.39%
No.Caro.	1980	President	John B. Anderson	2.85%
No.Dakota	2016	U.S. Senate	James Germalic	1.36%
Ohio	1950	U.S. House 9	Frazier Reams	36.55%
Oklahoma	2016	U.S. Senate	Sean Braddy	2.79%
Oregon	2016	U.S. Senate	Steven C. Reynolds	3.05%
Pennsy.	2014	U.S. House 10	Nicholas Troiano	12.61%
Rhode Is.	2016	U.S. House 2	Jeffrey C. Johnson	7.09%
So.Caro.	1980	President	John Rarick	.24%
So.Dakota	2016	Governor	Michael J. Myers	4.10%
Tennessee	2016	President	Gary Johnson	2.81%
Texas	2016	State Representative 120	Laura Thompson	22.35%
Utah	1996	President	A. Peter Crane	.17%
Vermont	2016	President	Rocky De La Fuente	.34%
Virginia	2017	Delegate 24	John C. Winfrey	27.69%
Washingtn	2016	State Representative 38	Bert Johnson	37.65%
West Va.	2014	U.S. House 2	Ed Rabel	4.05%
Wisconsin	2016	U.S. House 4	Robert R. Raymond	11.67%
Wyoming	2016	President	Jill Stein	1.01%

On April 19, Illinois State Senator Sam McCann said that he has left the Republican Party and formed the Conservative Party. He will be the Conservative Party’s nominee for Governor this year. He needs 25,000 signatures by June 25. Because the Libertarian Party defeated the law requiring new parties to run a full slate of candidates, in a lawsuit last year, McCann will not be required to also run Conservative Party nominees for Secretary of State, Attorney General, Comptroller, and Treasurer. McCann is the fourteenth state legislator to have left either of the two major parties since the November 2016 election.

Mexico holds a presidential election on July 1. Five candidates are on the ballot. All five of them debated each other on April 22, and the debate was widely televised.

No independent candidate has ever been on the ballot in Indiana for either Governor or U.S. Senator. Businessman Nathan Altman will try to collect the needed signatures this year to be an independent for U.S. Senate. He needs 26,700 by June 30.

During April, members of the Green and Libertarian Parties were elected to nonpartisan office. On April 3, Green member Yogesh Chawla was elected to the Dane County, Wisconsn Board of Supervisors; and Libertarian Brian Defferding as elected to the Winnebago County, Wisconsin, Board of Supervisors. On April 13, Libertarian Brandon Kneeld was elected to the Davenport, Florida, city council.

Law Professor Tim Canova ran a vigorous campaign in the Florida Democratic primary in 2016, for U.S. House, 23^rd district. He polled 43.2% against incumbent Debbie Wasserman Schultz. On April 2, 2018, Canova said that he had changed his registration to independent, and would be an independent candidate in 2018 for the same seat.

On April 2, the Montana Democratic Party and others filed a lawsuit against the Secretary of State, saying he erroneously determined that the Green Party petition for party status is valid, but that actually it lacks enough valid signatures. A trial was held on April 24, but was not finished, and will resume on April 30, too late for the outcome to be included in this issue of B.A.N.

Michigan has been holding primaries since 1909, but never had there been a contested primary for Governor, except for the Republican and Democratic Parties. But in 2018, two Libertarians qualified for the Libertarian primary ballot for Governor. The Libertarian Party is having its first Michigan primary in 2018. Generally minor parties in Michigan nominate by convention, but the Libertarians must nominate by primary in 2018 because their presidential vote in November 2016 was more than 5% of the total vote cast for Secretary of State in 2014. Each of the two Libertarian gubernatorial candidates needed 15,000 signatures, the same requirement as for Democrats and Republicans running for Governor. Any registered voter could sign.